Shutdown Has Limited Impact on Employee Benefits—For Now

The launch of the new health insurance exchanges; open enrollment; and now, the federal government shutdown. An already confusing time of year for benefits managers has been made even more challenging. As of Oct. 1, federal government offices have been short-staffed or closed, leaving employers and employees with more questions than answers.

“It's as if all the health care reform-driven changes weren’t enough to confuse employees about the future of their benefits—especially now that the exchanges are open,” said Jennifer Benz, CEO of Benz Communications, to
SHRM Online. “Given all that’s going on, it’s more important than ever that employers communicate clearly, simply and constantly to ensure employees don’t become overwhelmed with confusion and questions.”

Health Care Reform

Republican opposition to the Patient Protection and Affordable Care Act (ACA) drove the shutdown, and depending on one's viewpoint either the House Republicans or the Senate Democrats and President Barack Obama are being intransigent by refusing to compromise on delaying or altering aspects of health care reform, as noted in an alert from Buck Consultants.

Somewhat paradoxically, the ACA's public health insurance exchanges are not affected by the shutdown and were opened for business starting Oct. 1. Workers who lack employer-provided health benefits that are deemed "affordable" under the ACA can still go to healthcare.gov for information about how to enroll for coverage through their state’s exchange (see the
SHRM Online article "Exchanges Launch: How Significant Was Oct. 1?")

Jill Collins, an attorney at the law firm Mintz Levin in Boston, outlined for
SHRM Online the following key points regarding employee benefits and the shutdown:

The National Labor Relations Board (NLRB) will have just 11 employees remaining on the job during the shutdown and will cease nonessential functions, including resolving union disputes and reinstating back pay.

The Treasury Department will continue to disburse Social Security funds, conduct automated revenue collections and manage cash for the government each day, in addition to paying interest on the federal debt. But the department’s largest component, the Internal Revenue Service, will stop performing some of its key activities, such as audits, examining tax returns, processing paper returns and staffing call centers to respond to taxpayers with questions.

Health and Human Services will be sending home more than half of its workers, but the lack of funding will not affect various offices equally, and many parts of the agency will linger in a state between full functioning and total shutdown.

A majority of the Department of Labor's employees will be furloughed, affecting many programs and services, specifically those involving the Bureau of Labor Statistics and the Employment and Training Administration.

The Office of Labor Management Standards will only investigate “criminal cases under the Labor Management Reporting and Disclosure Act”—and even then, it will limit itself to cases that involve strict statutory deadlines.

"Employers should be aware that these staff reductions will temporarily cease all nonemergency occupational safety and health inspections, wage and hour audits, hearings and appeals at the DOL, and representation elections, trials and hearings at the NLRB," Collins noted. "These delays will provide employers facing regulatory action with more time to prepare for audits, hearings, etc., but it is a double-edged sword, as they will also protract these actions."

Moreover, "It is unclear how the delays might impact statutes of limitation for claims that the DOL or NLRB could have otherwise pursued during the shutdown. Federal labor and employment laws, however, remain in effect, and employers must continue to comply with all such laws and regulations," Collins said. The
issuance of most new rules and regulations is on hold.

Unemployment benefits (as well as other government benefits such as Medicare and Social Security) will continue despite any shutdown. "Employers must stay compliant on these matters, including by providing information to state agencies and appearing for any necessary hearings," Collins advised.

How the Government Shutdown Can Impact Your Business,
Philadephia Business Journal, October 2013 (This article discusses how private government contractors that might need to furlough their employees should keep in mind wage-and-hour rules under the Fair Labor Standards Act.)